Mr. Flynn agreed in 2017 to plead guilty to making false statements to the FBI when he said he did not remember his discussions with Russian Ambassador Sergey Kislyak in 2016 concerning U.S. sanctions against Russia. The FBI interview with him was part of the investigation into Russia’s interference in the U.S. election. As part of the plea deal, Mr. Flynn agreed to cooperate with the investigation. On Dec. 1, 2017, Mr. Flynn entered a guilty plea. Asked by the judge, “Did you, in fact, do what the government has stated it can prove at trial?” Mr. Flynn replied under oath, “Yes.” Mr. Flynn later changed lawyers, stopped cooperating with the investigation and moved to withdraw his guilty plea, contradicting his own sworn prior admissions of guilt. This was followed by Mr. Barr’s stunning turnabout, abandoning the prosecution before Mr. Flynn could be sentenced.
Under all but extreme circumstances, it is up to prosecutors to decide what to prosecute — an essential executive branch function. But in this case, there is substantial reason to question the government’s conduct, dropping a case in which a politically favored defendant had pled guilty. Mr. Flynn’s subsequent attempt to muddy the waters, and claim that his original statement to the FBI wasn’t material to the investigation, has been rejected by the court.
U.S. District Judge Emmet G. Sullivan, presiding over the case, set up a mechanism to examine the prosecution’s withdrawal, including a request for a critique of the government’s motion by John Gleeson, a former federal judge, and a hearing set for July 16. Mr. Gleeson found “clear evidence of a gross abuse of prosecutorial power” and concluded that “the government has engaged in highly irregular conduct to benefit a politcal ally of the president.”
Now, the three-judge appeals court panel has knocked the legs out from Judge Sullivan’s process. The panel argues that the judge has gone too far, that the choice of whether to prosecute is solely up to prosecutors except in extraordinary circumstances, such as malfeasance, like bribery. This is clearly not that. However, the decision to drop the Flynn case is not simply business as usual. It reeks of political manipulation at the highest levels of the United States government. The full appeals court should overrule the three-judge panel and allow Judge Sullivan to proceed with the hearing, rule on the prosecution’s request and go ahead with sentencing if he thinks it warranted.
There would be ample opportunity then for full judicial review of Judge Sullivan’s course of action. But it is a mistake to short-circuit the proceedings now. The only proper end to this case is to hear it to the end.